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European Whistle-blower Directive: Draft for consultation

Starting: 18 May Ending

0 days left (ends 13 Nov)

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In a democratic society, we need to encourage and protect those who speak out and report wrong-doing or illegal behaviour. Thanks to whistle-blowers, scandals like illegal mass surveillance, industrial scale tax avoidance or the sexual abuse of children by peacekeepers have been revealed.

This is why the Greens/EFA group in the European Parliament believes that there is an urgent need to enact an EU legal framework that would set out common minimum standards for the protection of whistle-blowers throughout the European Union.

We have drafted, together with legal experts, a draft EU law to protect whistle-blowers. We opened the draft up to public consultation for almost 4 months, from 16/05/15 to 12/09/2016.

We would like to thank everyone who participated for their feedback.

For technical reasons, this platform deletes the comments and votes received once you notify participants that you have edited the text in line with their recommendations. For this reason, we have not used the "change and inform users" function for the majority of the text, because we wanted to keep a record of the comments received. We have instead just edited the text directly.

 

protect whistle-blowers now!!

 

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THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 4(2)(b) in conjunction with Articles 151 and 153(2)(b) thereof,

[Having regard to the proposal from the Commission]

P18

Whereas:

(1) Whistle-blowers play an essential role in exposing corruption, fraud, mismanagement and other wrongdoing that threatens public health, finances and safety, financial integrity, human rights, the environment, and the rule of law.

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P19
V01
Author: PamBQ Date: 24 August 2016

(2) Whistle-blowers who act in the public interest in order to expose misconduct, wrongdoing, fraud or illegal activity often take a very high personal risk - which can also affect their families or co-workers - as they may be dismissed, sued, boycotted, arrested, threatened, harassed, victimised and discriminated against in a variety of other ways, including through attempts at character assassination.

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P20
V01
Author: PamBQ Date: 22 July 2016

(3) The right of citizens to report wrongdoing is a natural manifestation of the right of freedom of expression and information as enshrined in Article 11 of the Charter of Fundamental Rights, and it is essential to ensure the principles of transparency and integrity.

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P21
V01
Author: PamBQ Date: 24 August 2016

(4) Information related to threats to the public interest may concern different Member States (including the sub-national level), or may concern the wider European interest. Individuals may report in any Member State.

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P22

(5) In a Resolution of 23 October 2013 on ‘Organised crime, corruption and money laundering: recommendations on action and initiatives to be taken’, the European Parliament particularly called for the Commission, by the end of 2013, to submit a legislative proposal establishing an effective and comprehensive European whistle-blower protection programme in the public and in the private sector to protect those who detect inefficient management and irregularities and report cases of national and cross-border corruption relating to EU financial interests and to protect witnesses, informers, and those who cooperate with the courts, and in particular witnesses testifying against mafia-type and other criminal organisations, with a view to resolving the difficult conditions under which they have to live (ranging from risks of retaliation to the breakdown of family ties or from being uprooted from their home territory to social and professional exclusion). In this Resolution, the European Parliament calls also on the Member States to put in place appropriate and effective protection for whistle-blowers.[2]

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P23

(6) In aResolution adopted on 25th November 2015 on ‘Tax Rulings and other measures similar in nature or effect’, the European Parliament called on the European Commission to proposeEU legislation to protect whistle-blowers by June 2016 and condemned the fact that citizens and journalists can be subject to legal prosecution rather than legal protection when, acting in the public interest, they disclose information or report suspected misconduct, wrongdoing, fraud or illegal activity.

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P24

(7) In a Resolution adopted on 16th December 2015 aimed at bringing transparency, coordination and convergence to corporate tax policies in the Union to the European Parliament called on the European Commission to bring forward a legislative proposal offering Union-wide protection for whistle-blowers who report suspected misconduct, wrongdoing, fraud or illegal activity to national or European authorities or, in cases of persistently unaddressed misconduct, wrongdoing, fraud or illegal activity that could affect the public interest, to the public as a whole. It recognised that since whistle-blowers helped to mobilise public attention on the issue of unfair taxation, Member States should consider measures that will protect such activity since otherwise those workers who hold vital information will understandably be reluctant to come forward and therefore that information will not be made available.

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P25

(8) It has been specifically recognised that Regulation (EU) No596/2014 of the European Parliament and of the Council of 16April 2014 on market abuse (market abuse regulation) and repealing Directive 2003/6/EC of the European Parliament and of the Council and Commission Directives 2003/124/EC, 2003/125/EC and 2004/72/EC[3] could act a basis for legislation on whistleblowing. The market abuse Regulation highlights the fact that whistle-blowers may bring new information to the attention of competent authorities which assists them in detecting and imposing sanctions in cases of insider dealing and market manipulation. Furthermore, the Regulation notes that Member States should be allowed to provide for financial incentives for those persons who offer relevant information about potential infringements.

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P26
V01
Author: PamBQ Date: 24 August 2016

(9) There exist significant differences between the ways in which different Member States provide protection for whistle-blowers and, as a result, workers both in the public and private sector who hold vital information, which can also be of relevance in another Member State, are understandably reluctant to come forward. Therefore, that information would not be made available in the absence of a specific directive on the matter.

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P27
V01
Author: PamBQ Date: 24 August 2016

(10) There is a need to establish a more uniform and stronger framework in order to ensure accountability in the event of attempted wrongdoing or corruption and to provide more legal certainty.

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P28
V01
Author: PamBQ Date: 22 July 2016

(11) This Directive aims towards common minimum standards of protection that shall be coherent with the overall legal system and be effective against all forms of prohibited retaliation, such as but not limited to: unjustified legal prosecutions, economic penalties and discrimination.

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P29

(12) Member States may introduce stronger protection insofar as the national legislation is compatible with EU law.

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P30

(13) This Directive takes into consideration the Council of Europe's "Recommendation CM/Rec(2014)7 on the protection of whistle-blowers" and notably the definition of whistle-blower "as any person who reports or discloses information on a threat or harm to the public interest in the context of their work-based relationship, whether it be in the public or private sector".

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P31

(14) This Directive takes into consideration the Directive [NUMBER] of the European Parliament and of the Council of [DATE] on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure which includes an exception for whistle-blowers disclosing trade secrets in the public interest. Where the scope of the application of Directive [NUMBER] and the scope of this Directive overlap, this Directive takes precedence as lex specialis.

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P32

(15) This Directive is to apply without prejudice to the Regulation of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) [NUMBER, DATE], which requires Member States to protect the fundamental rights and freedoms of natural persons, and in particular their right to privacy with respect to the processing of personal data.

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P33

(16) When implementing the measures transposing this Directive, Member States must respect the fundamental rights and observe the principles recognised in particular by the European Charter of Fundamental Rights, notably the right to respect for private and family life, the right to protection of personal data, the rights to freedom of expression and access to documents and information, the freedom to choose an occupation and right to engage in work, the right to good administration, the right to an effective remedy and to a fair trial and the right of defence.

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Chapter I

GENERAL PROVISIONS

Article 1

Purpose

P34

1. The objective of this Directive is to introduce minimum standards for the legal protection of whistle-blowers so as to encourage the disclosure of information in the public interest and protect whistleblowers from retaliation.

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